by Jonathan Wallace and Michael Green
Anonymity
or pseudonymity[1]
on the Internet[2]
are today’s “betes noirs”. Numerous commentators have noted the dangers
and have called for laws limiting or restricting anonymity. At least one
state, Georgia, has already passed such a law.[3]
However, proponents of such regulation have the responsibility of explaining
why a settled tradition of Supreme Court jurisprudence proclaiming anonymity
as a First Amendment right, culminating in the recent McIntyre v. Ohio,
is inapplicable to the Internet. We take the position, however, that McIntyre
and its predecessors are in fact indistinguishable, and that anonymity
is as valuable a right on the Internet as it is in print media.
In
this article, we argue that the abuses of anonymity, which are primarily
nuisances,[4]
not criminal actions, are far outweighed by the social advantages. In the
first section, we briefly recount the history of anonymity in literary
and political communications, from Rabelais to the present. In the second
section, we analyze the Supreme Court cases on anonymity, from Bates
v. Little Rock to McIntyre.
In the third section, we examine
anonymity in cyberspace from a sociological and legal perspective, with
particular emphasis on rebutting the various arguments being advanced to
support its regulation. We conclude that anonymity in cyberspace is a fundamental
underpinning of democracy and of self-realization.
A Brief History of Anonymity
In
1532, Francois Rabelais began his anonymous Chronicles of the Giant Gargantua
by publishing Book One, Pantagruel, and two years later, Book Two, Gargantua
and Pantagruel.[5]
Although Rabelais’ works were political and social satire, they were criticized
as being obscene by the Sorbonne, the theological wing on the University
of Paris and Book Three, written in 1546, was actually labeled as heresy.[6]
The Protestant leader Calvin even distributed papers warning,
[These
writers are] curs who assume the attitudes of comedy in order to enjoy
greater freedom to vomit their blasphemies. They revel in banquets and
they haunt libertine company where, speaking at pleasure, they leave no
stone unturned in destroying all fear of God in the minds of their hearers.[7]
Nearly
two centuries later, in colonial America, John Peter Zenger, the owner
of a printing press and publisher of the Weekly Journal of New York[11]
was arrested on charges of seditious libel, particularly for articles directed
against British Governor William Cosby.[12]
Thenewspaper contained many anonymous
articles written by Zenger’s anti?British rule associates sharply criticizing
the monarchy. Zenger was arrested and would not reveal the names of the
authors, in particular, "Cato"[13],
and so stood trial himself instead. Prior to trial however, both of Zenger's
New York lawyers were disbarred for questioning the court's authority.[14]
Finally,
Andrew Hamilton,[15]
a well respected attorney from Philadelphia stepped up and convinced the
jury so well, they only needed only a few minutes to acquit even after
the judge explained to them that because Zenger had admitted what he did,
he must be found guilty.[16]
Hamilton's strategy of admitting to the jury that Zenger had, in fact,
published the article criticizing the monarchy and then explaining to them
that there was nothing libelous about it because it was all true, created
the truth defense to defamation.[17]
Justice Clarence Thomas says of the Zenger case:
Although
the case set the colonies afire for its example of a jury refusing to convict
a defendant of seditious libel against Crown authorities, it also signified
at an early moment the extent to which anonymity and the freedom of the
press were intertwined in the early American mind.[18]
This
relationship of freedom of the press to anonymity would continue to resonate
as the American republic developed. As Justice Thomas further noted,
.
. . the Framer’s universal practice of publishing anonymous articles and
pamphlets, indicates that the Framers shared the belief that such activity
was firmly part of the freedom of the press. It is only an innovation of
modern times that has permitted the regulation of anonymous speech.[19]
Paine’s
anonymity did not last very long, presumably because of the popularity
of the work. Indeed, to meet the growing demand for more copies, he procured
several other printers to publish his pamphlet.[23]
In commenting on its success, Paine said, “I believed the number of copies
printed and sold in America was not short of 150,000, [and this was] the
greatest sale that any performance ever had since the use of letters.”[24]
Paine might not have published the work if he was required to put his name
to it. Indeed, Paine's ideas were extremely radical and seditious, and
he understood, as do all revolutionaries, that people responsible for such
ideas are severely punished..
Many
other colonial free thinkers published their thoughts, ideas and opinions
under pseudonyms that described their intentions or backgrounds. They used
names such as "A Son of Liberty"[25],
"A Well?Wisher to Mankind"[26],
"Massachusettensis"[27],
"A Pennsylvanian"[28]
and even just "A Friend to the Liberty of His Country,”[29]
to protect themselves from a depravation of their life, liberty or property.
Their fears were neither unfounded nor unreasonable. Benjamin Franklin's
brother was jailed in Boston for insinuating in his newspaper that the
provincial government was not taking effective action against coastal pirates
and Samuel Mulford, a New York Assemblyman was expelled because he suggested
other members of the Assembly were corrupt.[30]
This
conflict between federal and state power reappeared in the 19th century,
and once again, political writers sought anonymity. This time the issue
in question was slavery and many states in the South began outlawing abolitionist
expressions.[37]
Although there were people like William Lloyd Garrison, who published the
leading anti-slavery newspaper, The Liberator, under his own name, many
authors relied on anonymity to protect themselves from the ramifications
of their unpopular ideas.[38]
“A Colored Baltimorean”[39]
wrote several of the first articles arguing that Blacks considered themselves
Americans, not Africans and further, did not want to return to Africa,
but rather live in America in equality. “Communipaw” commented on “a variety
of issues, including black economic and social life, scientific theories
of race, antislavery strategies, and racial prejudice among white abolitionists.”[40]
Women
abolitionists had even more reason to write anonymously because they were
fighting prejudice on several fronts. As blacks, they were generally fighting
whites against slavery. As women, they were fighting men, both white and
black, for gender equality. Anonymous articles and poetry by “Magawisca”[41]
and “Zillah”[42]
suggested the abolitionists should address the inequality between men and
women within the abolitionist movement before it could address the issue
of inequality between blacks and whites within America.
Nineteenth
century anonymity was not limited to political speech. Indeed, the most
famous pseudonymous author in history is unquestionably Mark Twain.[43]
Some nineteenth century authors, primarily women, explained their motives
for writing anonymously. Mary Ann Evans, for example, was one of the most
talented writers of the century. Yet, her real name is obscure compared
to George Eliot, the name she chose to veil her true identity and gender.
She said:
Whatever
may be the success of my stories, I shall be resolute in preserving my
incognito - having observed that a nom de plume secures all the advantages
without the disagreeables of reputation.[44]
When
pressed by the editor publishing her works to reveal her identity, Eliot
replied,
For
several reasons I am very anxious to retain my incognito for some time
to come, and to an author not already famous anonymity is the highest prestige.
Besides if George Eliot turns out a dull dog and an ineffective writer
- a mere flash in the pan - I for one am determined to cut him on the first
intimation of that disagreeable fact.[45]
Anonymous
political writings have continued to play a significant role in modern
times. George Kennan, lauded as one of the architects of America's Cold
War policy of containment, published his essay, “The Sources of Soviet
Power”, anonymously in Foreign Affairs in 1947 signing it “X.”[46]
It was based largely on a telegram he had sent to Secretary of the Navy
James Forrestal[47]
and the controversy erupted when rumors began to “connect it with the Truman
Doctrine and Marshall Plan [and] speculate on its significance.”[48]
Although several political leaders of the time knew Kennan was “X”, it
was decades later when Kennan publicly acknowledged that he was “X”. In
1949, George Morgan[49],
using the anonymous name of “Historicus”, also wrote an influential article
for Foreign Affairs.
More
recently, a “thinly veiled and eerily precise account of the players and
goings-on behind the 1992 Clinton campaign was written by Anonymous.”[50]
The book, Primary Colors, created a race to uncover the identity of the
author.[51]
It is not very difficult to see why the author would not want the President
to know who wrote this expose, however, the author also found another useful
benefit of anonymity; marketing publicity[52].
An anonymous author is an unsolved mystery gnawing at society’s burning
desire for knowledge. As such, people will purchase the book, and perhaps
even read it, just to try and identify the author. Indeed, some newspapers
even gave odds on who could be the possible author. Klein was 50:1.
Sometimes
retaliation results from the author’s identity rather than the content
of the writing. In the 1950's, many writers in the entertainment industry
were labeled communists and effectively barred from working.[53]
Although most, if not all of them, were not writing about political ideologies,
the government was still concerned that whatever they wrote would contaminate
America .[54]
As a result, some were forced to write for television under pseudonyms
or use the names of friends who were sympathetic to their plight just to
earn a living.[55]
A
major casualty of this conflict was the closing of anon.penet.fi,[58]
arguably the most famous (and popular[59])
anonymous remailer.[60]
Anon.penet.fi was shut down by its owner because the law in Finland concerning
anonymity on the Internet is not clear. In early 1995, Finnish police,
acting on a complaint by the Church of Scientology,[61]
used a search warrant[62]
to force anon.penet.fi to divulge the identification of a user the Church
claimed had violated their copyrights by anonymously publishing certain
Church documents on the Internet.[63]
****Some
anonymous remailers keep a record of the identity of the user so that replies
to anonymous email can be forwarded to the right individual. Others are
“one way” services which strip out all identifiers without keeping track
of the user’s identity. In this case, replies to the anonymous message
are not possible, and subpoenas are futile, as the remailer keeps no records.
In fact, anonymous one-way remailers are mainly for the convenience of
users without programming skills, as it is not difficult for more sophisticated
users to send anonymous email by exploiting certain features of the network.***
In
spring of 1996, the Church was once again granted a search warrant by the
Finnish police. This time, however, it was not to identify a particular
anonymous account, but to search through the database of real accounts
to see if the person they were suing now ever used the system;[64]
a person who denied ever having used the system and no evidence was ever
presented that he did. Anon.penet.fi refused and asked the Helsinki District
Court to delay, but was denied. An appeals court temporarily stayed the
District Court’s order[65]
Nevertheless, although anon.penet.fi is no longer operational, many other
anonymous remailers have sprung up and some now encrypt the identifying
information on accounts so even the owner of the re-mailer can never determine
who is really who and a search warrant would be useless.
According
to its sponsors, the law was intended to prevent people from misleading
the public into believing information comes from one source, when in fact,
it comes from another source[67].
It’s intended purpose, however, is dwarfed by what it actually can encompass.
To be criminally liable, a person must ‘falsely identify’ themselves while
‘exchanging information’ through ‘transmission facilities’ to ‘a point
of access to electronic information’. The statute neither defines nor limits
these terms, and as such, is an extremely over broad and vague law on its
face. What you have, according to Rep. Kaye, is an “unconstitutional abrogation
of the right to free speech”.[68]
For
example, it would not be too difficult to include CB radios or even just
the airwaves in general as “transmission facilities”, nor would it be a
stretch of technology to call a fax machine, pager or even a telephone
handset or television a “point of access to electronic information.” Factor
in the “falsely identify” provision, and then take into consideration that
handles[69],
screen names[70],
nicknames and even pager codes[71]
fit right into that category.
This
level of overbreadth and vagueness is the result of a group of people regulating
something on which they have not yet been fully educated. Without thorough
and informed discussion and debate, a logical and practical decision cannot
be made. Rep. George Grindley (R-GA) agrees,
[a]s
one who was present for all the debate and discussion on this issue, it
is sobering to realize that so few people could have such a large impact
on an issue they know so little about. Other states need not follow in
our footsteps. . . .[T]he House Council that drafted this legislation was
"netless" and the finished product illustrates this basic lack of understanding.
It reminds me of the song that says, "don't try to describe the ocean if
you've never seen it." [72]
Even
more unfortunate is the possibility that this law was originally intended
to target a particular site on the Internet; one maintained by Rep. Kaye
of the GA House.[73]
Rep. Kaye, who opposed the bill during debate on the House floor is now
a plaintiff in a lawsuit spearheaded by the ACLU[74].
His site, the Conservative Policy Caucus, disseminates information about
Rep. Kaye’s personal, albeit ultra-conservative, viewpoints and opinions
relating to the ‘goings on’ in a state legislature.
The Supreme Court Looks at
Anonymity
All
of the cases decided by the Supreme Court have been based on the premise
that the protection of anonymous speech will lead to more vigorous political
debate in the United States.[76]
The Court appears to be very cognizant of the fact that, even in a democracy
with strong freedom of speech protections, the holders of unpopular opinions
are frequently harassed by the government and by private parties who strongly
disagree with them.[77]
Any prohibition of anonymous political speech harms democracy by limiting
the range of available ideas to mainstream ones unlikely to lead to negative
consequences for the speaker. The Court also bases its rulings on the premise
that the First Amendment freedom of association is meaningless without
an associated right of anonymity in one’s associations.
The
lead case in the modern jurisprudence of anonymity is National Association
for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1958),
in which the NAACP resisted Alabama’s attempt to require it to disclose
the identity of its members. In a lawsuit brought to challenge NAACP’s
right to do business in Alabama, the state had attempted to subpoena the
organization’s membership list. The organization refused to produce the
list and the court held it in civil contempt and fined it $100,000.00.
Id. at 466. Basing its reasoning on the First Amendment right to freedom
of association, the Court noted that:
It
is hardly a novel perception that compelled disclosure of affiliation with
groups engaged in advocacy may constitute as effective a restraint on freedom
of association as the forms of governmental action in the cases above were
thought likely to produce upon the particular constitutional rights there
involved. This court has recognized the vital relationship between freedom
to associate and privacy in one's associations. . . . Inviolability of
privacy in group association may in many circumstances be indispensable
to preservation of freedom of association, particularly where a group espouses
dissident beliefs. Id. at 462.
Alabama
argued that private harassment of NAACP members whose identity became known
was not state action. Since there was no governmental harm threatened,
it was inappropriate to invoke the First Amendment in protection of the
NAACP membership’s right to privacy. The Court disagreed.
It
is not sufficient to answer, as the state does here, that whatever repressive
effect compulsory disclosure of names of petitioner's members may have
upon participation by Alabama citizens in petitioner's activities follows
not from state action but from private community pressures. The crucial
factor is the interplay of governmental and private action, for it is only
after the initial exertion of state power represented by the production
order that private action takes hold. Id. at 463.
The
Court then concluded:
We
hold that the immunity from state scrutiny of membership lists which the
association claims on behalf of its members is here so related to the right
of the members to pursue their lawful private interests privately and to
associate freely with others in so doing as to come within the protection
of the Fourteenth Amendment. And we conclude that Alabama has fallen short
of showing a controlling justification for the deterrent effect on the
free enjoyment of the right to associate which disclosure of membership
lists is likely to have. Id. at 466.
Bates,
an NAACP official, was tried, convicted, and fined for a violation of the
ordinance. Evidence was introduced at trial that members of the organization
had failed to renew their membership because of the passage of the ordinance
and that those whose names became known in the community had been subjected
to harassment and to threats of physical harm. The Court held:
Like
freedom of speech and a free press, the right of peaceable assembly was
considered by the framers of our constitution to lie at the foundation
of a government based upon the consent of an informed citizenry -- a government
dedicated to the establishment of justice and the preservation of liberty.
. . . [A]nd it is now beyond dispute that freedom of association for the
purpose of advancing ideas and airing grievances is protected by the due
process clause of the Fourteenth Amendment from invasion by the states.
. . . Freedoms such as these are protected not only against heavy-handed
frontal attack, but also from being stifled by more subtle governmental
interference . . . . [cites omitted] Id. at 522.
Citing
NAACP v. Alabama, See note xx, supra, the Supreme Court again held
that forced disclosure of NAACP membership lists would significantly interfere
with the First Amendment right of freedom of association, as applied to
the states via the Fourteenth Amendment. Id. at 523. The Court then balanced
the potential harm to the organization’s members against the state’s interest
in knowing their names and applied its “strict scrutiny” approach, asking
whether the state had a compelling interest in the information and whether
the ordinance was narrowly tailored and least restrictive means to achieve
the goal.
It
was as an adjunct of their power to impose occupational license taxes that
the cities enacted the legislation here in question. But governmental action
does not automatically become reasonably related to the achievement of
a legitimate and substantial governmental purpose by mere assertion in
the preamble of an ordinance. Id. at 525.
Searching
the record, the Court found no “relevant correlation” between the state’s
license taxing power and the ordinance. Id. Arkansas was unable to show
that any activity of the NAACP was taxable under the state’s laws. Arkansas
had never levied a tax against the NAACP, nor had the organization ever
applied for an exemption from any Arkansas tax. The Court voided the judgment
below, concluding that:
Justices
Black, joined by Justice Douglas, in a concurring opinion, added the following
explanation of the Court’s intentions:
Moreover,
we believe . . . that First Amendment rights are beyond abridgment either
by legislation that directly restrains their exercise or by suppression
or impairment through harassment, humiliation, or exposure by government.
One of those rights, freedom of assembly, includes of course freedom of
association; and it is entitled to no less protection than any other First
Amendment right . . . . These are principles applicable to all people under
our constitution irrespective of their race, color, politics, or religion.
That is, for us, the essence of the present opinion of the court. [cites
omitted] Id. at 528.
That
same year, the Court decided Talley v. California, 362 U.S. 60 (1960)
which raised a very different question: Could the state constitutionally
require every author of a leaflet to disclose his name in it? Talley was
convicted and fined for a violation of a Los Angeles municipal ordinance
requiring every handbill to carry the name of the individual who “caused”
it to be distributed. Id at 61. Organizations were required to disclose
the name of an agent or principal on the handbill. Talley had distributed
leaflets in the name of “National Consumer Mobilization” calling for the
boycott of local businesses which carried the products of allegedly discriminatory
manufacturers. These leaflets failed to disclose Talley’s name. Id.
The
Court took a sweeping view of the political importance of anonymity:
Anonymous
pamphlets, leaflets, brochures and even books have played an important
role in the progress of mankind. Persecuted groups and sects from time
to time throughout history have been able to criticize oppressive practices
and laws either anonymously or not at all. Id. at 64.
The
Court reviewed the history of the British press licensing law as applied
to the colonies,[80]
the sedition acts,[81]
the anonymous Junius papers[82]
and the Federalist papers[83].
Citing NAACP and Bates, it concluded:
Justice
Harlan filed a concurring opinion, addressing the state’s claimed interest
in suppressing anonymous speech.
Here
the State says that this ordinance is aimed at the prevention of “fraud,
deceit, false advertising, negligent use of words, obscenity, and libel,”
in that it will aid in the detection of those responsible for spreading
material of that character. But the ordinance is not so limited, and I
think it will not do for the State simply to say that the circulation of
all anonymous handbills must be suppressed in order to identify the distributors
of those that may be of an obnoxious character. Id. at 66.
Justice
Clark, joined by Justices Frankfurter and Whittaker dissenting, distinguished
this case from the NAACP cases. He noted a complete absence from
the record of any evidence that Talley would be harmed by disclosing his
name on the leaflet. “Talley makes no showing whatever to support his contention
that a restraint upon his freedom of speech will result from the enforcement
of the ordinance. The existence of such a restraint is necessary before
we can strike the ordinance down.” Id. at 69. Citing federal laws requiring
disclosure of a magazine’s ownership before it can use the mails, the registration
of political lobbyists, and state laws regarding the disclosure of campaign
contributors, Justice Clark finished with a rhetorical flourish:
Is
Talley's anonymous handbill, designed to destroy the business of a commercial
establishment, passed out at its very front door, and attacking its then
lawful commercial practices, more comportable with First Amendment freedoms?
I think not. Id. at 71.
In
Brown v. Socialist Workers Campaign Committee, 459 U.S. 87 (1982) the
Court considered whether the First Amendment requires a right to anonymity
for contributors to political campaigns and the recipients of campaign
expenditures. The Socialist Workers Party, an unpopular minority party
running candidates in state elections in Ohio, brought an action challenging
disclosure provisions of the Ohio Campaign Expense Reporting Law. Justice
Marshall, writing for the majority, noted that Buckley v. Valeo,
424 U.S. 1 (1976), had held that the First Amendment prohibits the government
from compelling disclosures by a minor political party that can show a
"reasonable probability" that the compelled disclosures will subject those
identified to "threats, harassment, or reprisals." Brown, 459 U.S. at 88.
Up
until 1976, the FBI had investigated all the party’s financial transactions
and kept track of the payees of all its checks. Party members had received
threatening phone calls and hate mail, party literature had been burned
and members’ property destroyed; a party candidate had been harassed by
the police; and shots had been fired at a party office. In the year prior
to trial, twenty-two members had been fired from their jobs because of
their political affiliations, including four in Ohio. For years the FBI
had conducted a counter-intelligence “disruption” program against the party,
flooding it with paid informants, disclosing party members’ criminal records
to the press, sending anonymous letters intended to stir up dissension,
and distributing intelligence reports to numerous other branches of government.
In the end, the government had accumulated about 8,000,000 documents on
the Socialist Workers’ Party, had 300 paid informants who were party members
and regularly received information on party activities from 1,000 other
non-members.
The
Court held that the Socialist Workers’ Party was entitled to the protection
envisioned in Buckley and was exempt under the Ohio law from disclosing
either its contributors or the recipients of its expenditures:
The
First Amendment prohibits a state from compelling disclosures by a minor
party that will subject those persons identified to the reasonable probability
of threats, harassment or reprisals. Such disclosures would infringe the
First Amendment rights of the party and its members and supporters. In
light of the substantial evidence of past and present hostility from private
persons and government officials against the SWP, Ohio's campaign disclosure
requirements cannot be constitutionally applied to the Ohio SWP. The judgment
of the three-judge District Court for the Southern District of Ohio is
affirmed. Id. at 101.
Justice
O’Connor, joined by Chief Justice Rehnquist and Justice Stevens, dissenting
in part agreed that disclosure of the party’s contributors should be exempt
under Buckley. However, they did not agree that the Court should
have held the payees of the party’s expense checks to be similarly exempt.
[T]he
SWP has failed to carry its burden of showing that there is a reasonable
probability that disclosure of recipients of expenditures will subject
the recipients themselves or the SWP to threats, harassment, or reprisals.
Moreover, the strong public interest in fair and honest elections outweighs
any damage done to the associational rights of the party and its members
by application of the state's expenditure-disclosure law. Id. at 107.
Certainly
the SWP could have this effect. For example, appellants noted at oral argument
that the SWP candidate in the 1974 Ohio gubernatorial election received
some 95,000 votes. The Republican candidate's margin of victory over the
Democratic candidate was only some 13,500 votes. The impact of minor parties
on elections in the United States is well documented. Id. at 110, n5.
Moreover,
they argue, business providers of services to a minority party are less
likely to be frightened away by disclosure of their names than contributors
are.
Unlike
silent contributors, whom disclosure would reveal to the public as supporters
of the party's ideological positions, persons providing business services
to a minor party are not generally perceived by the public as supporting
the party's ideology, and thus are unlikely to be harassed if their names
are disclosed. Id. at 111.
The
dissenters conclude that “the record, read in its entirety, does not suggest
that disclosure of recipients of expenditures would lead to harassment
of recipients or reprisals to the party or its members.” Id. at 114.
The
Court’s most recent statement on anonymity is McIntyre v. Ohio Campaign
Commission, 115 S.Ct. 1511 (1995) another case involving an Ohio law.[85]
Like the law overturned in Talley, See note xx, supra, this ordinance
was intended to identify the authors of handbills. Unlike the Talley
ordinance however, it applied only to handbills distributed in connection
with political campaigns. The defendant, Mrs. McIntyre, was an Ohio housewife
who printed and distributed leaflets in connection with a local school
board campaign. She identified herself on some of these, but neglected
to do so on others. She was fined for violation of the ordinance and appealed.[86]
The
Supreme Court, in an opinion written by Justice Stevens, cited Talley
for the proposition that “[a]nonymous pamphlets, leaflets, brochures
and even books have played an important role in the progress of mankind.”
Id. at 1516. Several aspects of the opinion are more nuanced than Talley
or any of the other predecessor decisions. First, the Court affirmed that
the right of anonymity applies to a range of speech much broader than simply
political discourse:
Secondly,
the Court identified the legal requirement to add one’s name to a leaflet
as more than mere government force, dubious in itself where protected speech
is concerned. Disclosure requirements, the Court held, are government force
directed to content; when you add your name to a leaflet, you are literally
adding text that you might not have added but for government compulsion.
The Court thus compared the Ohio ordinance to the Florida newspaper right-of-reply
law it had overturned in Miami Herald v. Tornillo 418 U.S. 241(1974):
Insofar
as the interest in informing the electorate means nothing more than the
provision of additional information that may either buttress or undermine
the argument in a document, we think the identity of the speaker is no
different from other components of the document's content that the author
is free to include or exclude. . . . The simple interest in providing voters
with additional relevant information does not justify a state requirement
that a writer make statements or disclosures she would otherwise omit.
[cites omitted] McIntyre 115 S.Ct at 1519.
Third,
the Court noted that speech can be more effective sometimes if the speaker’s
identity is unknown.
On
occasion, quite apart from any threat of persecution, an advocate may believe
her ideas will be more persuasive if her readers are unaware of her identity.
Anonymity thereby provides a way for a writer who may be personally unpopular
to ensure that readers will not prejudge her message simply because they
do not like its proponent. Thus, even in the field of political rhetoric,
where the identity of the speaker is an important component of many attempts
to persuade, the most effective advocates have sometimes opted for anonymity.
[cite omitted] Id. at 1517.
Ohio
had argued a compelling interest in regulating fraud and libel in election-related
speech. Though the Court acknowledged that Ohio had a legitimate interest
in doing so, the ordinance was over broad because it went much further
than necessary to protect this interest:
Ohio
had more narrowly-tailored remedies available to it to prosecute illegal
election-related speech. “[I]t cannot seek to punish fraud indirectly by
indiscriminately outlawing a category of speech, based on its content,
with no necessary relationship to the danger sought to be prevented. One
would be hard pressed to think of a better example of the pitfalls of Ohio's
blunderbuss approach than the facts of the case before us.” Id. at 1524.
The
Court concluded by noting, as it had in Talley, the hallowed tradition
of anonymity in American political discourse.
Under
our Constitution, anonymous pamphleteering is not a pernicious, fraudulent
practice, but an honorable tradition of advocacy and of dissent. Anonymity
is a shield from the tyranny of the majority. . . . It thus exemplifies
the purpose behind the Bill of Rights, and of the First Amendment in particular:
to protect unpopular individuals from retaliation--and their ideas from
suppression-at the hand of an intolerant society. The right to remain anonymous
may be abused when it shields fraudulent conduct. But political speech
by its nature will sometimes have unpalatable consequences, and, in general,
our society accords greater weight to the value of free speech than to
the dangers of its misuse. [cites omitted] Id. at 1524.
Justice
Thomas, concurring in the result, protested the Court’s philosophical approach,
preferring to analyze the “original intent” of the drafters of the Constitution.
He found that anonymity, though not mentioned in the Constitution, was
a vital part of political discourse in the early colonies. His opinion
makes highly interesting reading, whether or not you agree with his methodology.
“There is little doubt that the Framers engaged in anonymous political
writing. The essays in the Federalist Papers, published under the pseudonym
of Publius, are only the most famous example of the outpouring of anonymous
political writing that occurred during the ratification of the Constitution.”
Id. at 1525, Thomas concurring.
Distinguishing
between the “original intent” approach and the “historical” acceptance
and widespread use of anonymity, Justice Thomas noted:
Whether
great works of literature--by Voltaire or George Eliot have been published
anonymously should be irrelevant to our analysis, because it sheds no light
on what the phrases ‘free speech’ or ‘free press’ meant to the people who
drafted and ratified the First Amendment. Similarly, whether certain types
of expression have ‘value’ today has little significance; what is important
is whether the Framers in 1791 believed anonymous speech sufficiently valuable
to deserve the protection of the Bill of Rights. Id. at 1530.
After
reviewing the historical evidence, Justice Thomas concluded that “ it seems
that the Framers understood the First Amendment to protect an author's
right to express his thoughts on political candidates or issues in an anonymous
fashion. Because the majority has adopted an analysis that is largely unconnected
to the Constitution's text and history, I concur only in the judgment.”
Id.
Justice
Scalia, joined by Chief Justice Rehnquist, dissenting, complained poignantly
that the majority preferred the “views of the English utilitarian philosopher
John Stuart Mill . . . to the considered judgment of the American people's
elected representatives from coast to coast.” Id. at 1531. Further, the
dissenters suggested that the Court had discovered “a hitherto unknown
right-to-be-unknown while engaging in electoral politics.” Id.
The
dissenters used a modified “original intent” approach. Distinguishing the
precedents cited by Justice Thomas, they noted that the Founders had never
specifically approved, or engaged in, anonymous electioneering, and that,
to the contrary, there was a long, unbroken history of states outlawing
the practice.
The
dissenters went on to give numerous other examples of state laws barring
anonymity in political campaigns and distinguished the NAACP cases,
Tally
and Brown on the grounds that each had involved a real
threat of harm to the speakers and the necessity to exempt them from legal
disclosure requirements to protect them from that harm. “But those cases
did not acknowledge any general right to anonymity, or even any right on
the part of all citizens to ignore the particular laws under challenge.”
Id. at 1534. After giving several hypothetical situations, each more outlandish
than the last, the dissenters concluded that “[t]he silliness that follows
upon a generalized right to anonymous speech has no end.” Id. at 1535.
They
also suggested that an anti-anonymity ordinance would be likely to deter
behavior that the state has a reasonable interest in preventing.
[A]
person who is required to put his name to a document is much less likely
to lie than one who can lie anonymously, and [] the distributor of a leaflet
which is unlawful because it is anonymous runs much more risk of immediate
detection and punishment than the distributor of a leaflet which is unlawful
because it is false. Thus, people will be more likely to observe a signing
requirement than a naked “no falsity” requirement; and, having observed
that requirement, will then be significantly less likely to lie in what
they have signed. Id. at 1536.
They
noted the common complaint that campaign rhetoric had become dirtier and
nastier in recent years. “Imagine how much all of this would increase if
it could be done anonymously. The principal impediment against it is the
reluctance of most individuals and organizations to be publicly associated
with uncharitable and uncivil expression. Consider, moreover, the increased
potential for ‘dirty tricks.’” Id.
The
dissenters saw no parallel to Tornillo, which after all had required
a newspaper to print an opposing viewpoint, compelling it to publish content
not at all comparable to the mere addition of a name.
But
it is not usual for a speaker to put forward the best arguments against
himself, and it is a great imposition upon free speech to make him do so.
Whereas it is quite usual--it is expected--for a speaker to identify himself,
and requiring that is (at least when there are no special circumstances
present) virtually no imposition at all. Id.
In
summary, the dissenters said that they could imagine “no reason why an
anonymous leaflet is any more honorable, as a general matter, than an anonymous
phone call or an anonymous letter. It facilitates wrong by eliminating
accountability, which is ordinarily the very purpose of the anonymity.”
They focus on the negative aspects of anonymity and fail to consider the
importance of the positive side of anonymous discourse. Therefore they
do not balance these two factors as the majority does and do not come to
their logical conclusion. “The interest in having anonymous works enter
the marketplace of ideas unquestionably outweighs any public interest in
requiring disclosure as a condition of entry.” Id. at 1516.
Many
of the opponents of anonymity on the Internet echo these views as well
and they also fail, as do the dissenters, to balance the advantages to
society against the nuisances. Indeed, the Internet is the ultimate “marketplace
of ideas” and any regulation of anonymous communication on the Internet
must analyze both the relevant Supreme Court jurisprudence and the prevailing
use of anonymity in cyberspace.
Anonymity in Cyberspace
The
Supreme Court’s rulings on anonymity and freedom of speech create a rule
that is so simple and clear that it seems necessarily to apply it to cyberspace
communications. It is difficult to draw any logical distinction between
Talley’s or McIntyre’s handbills and an anonymous email criticizing the
employment practices of a corporation or commenting on a local school board
race. The same interest in diverse political discourse that supports the
result where a paper leaflet is concerned seems clearly to apply to the
electronic bits transmitted when an email is sent.